Ask the legal expert

Two residents (not a married couple) have been discovered having sex. What should I do? Should we create some pertinent policies? Should I (or anyone) call a lawyer?

Sex and intimate relationships between non-married residents in a long-term care setting can be a difficult and dynamic issue for residents, residents' family members and facility staff to resolve together.

Residents have privacy rights, including the right to consensual sexual relationships with other residents. Facilities have the often-conflicting duties of respecting residents' privacy rights and protecting residents' safety. Family members have a right to be involved in the care of their loved ones. None of these rights is overriding.

A facility must balance residents' privacy interests with its obligation to provide a safe environment for all its residents, while including family members in the process. Having policies in place to address sexual relations between residents makes it easier for a facility to manage these relationships when they inevitably arise.

These policies should clearly set forth procedures staff should follow when they discover sexual relations between residents, yet be flexible enough to handle the variety of situations that occur.

Determining whether a resident has the capacity to consent to sexual activity is a main concern. Residents with Alzheimer's disease or dementia may not have the decisional capacity to provide consent to sexual intimacy, and it may be necessary for a resident's physician to determine specifically whether the resident has the necessary capacity. The process for ascertaining whether a resident has such capacity may be much different than the process for determining decisional capacity for making healthcare decisions.

Facilities should inform families of policies on intimate relationships and sexual activity between residents.